Petition — Montanye v. Haymes

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

No.

Ernest L. Montanye, Superintendent of Attica Corree-

tional Facility and Harotp Smirn, Deputy Superin-

tendent of Attica Correctional Facility,

Petitioners,

against

Ropney R. Haymes,

Respondent.

MOTION FOR EXPEDITED CONSIDERATION OF

PETITION AND PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

Louis J. Lerxowrrz

Attorney General of the

State of New York

Attorney for Petitioners

Office & P.O. Address

Two World Trade Center

New York, New York 10047

Tel No. (212) 488-7590

Samvue. A. HrsHow1tTz

First Assistant Attorney General

Hittet HorrMan

Assistant Attorney General

Marcery Evans REIFLER

Deputy Assistant Attorney General

of Counsel

$$$ A

TABLE OF CONTENTS

PAGE

Motion for Expedited Consideration of Petition ..... 1

IN iccWA dude dans Segncuenenneceeeecas 4

SOL ov cdc ncccdccctcdccatecccswescccecésces 4

CBntaiion. POGRMORE,. « .. cncoceccccccveccecccceseces 4

ES GE TO GD oo. kdb caccccetscececedvicsss 4

Bs PE 9b 66 Sakic cncicdndesdessccesecacsness +

Be BD boc ccdduccccdcccasenceds 5

Reasons for Granting the Petition for Certiorari—

This Court should decide whether an inmate

transferred within a state from one maximum se-

curity institution to another maximum security

institution, without the imposition of disciplinary

punishment, is entitled to notice and a hearing

under the Due Process Clause ................ 8

IIE a bh acewnddenddvedenvedacucbekScadisas 16

INDEX TO APPENDIX

PAGE

Appendix A—Decision of the United States Court of

Appeals for the Second Circuit, dated October 4,

EE. oc ndseacuneddenennsusabesnnseieesedéeess la

Appendix B—Opinion of the District Court, dated

Fame 4, 1DTS 2... ec ccccccccccvccccccccssccvcees 13a

ii TABLE OF CONTENTS

TABLE OF Cases PAGE

Atkens v. Lash, 371 F.Supp. 482 (N.D. Ind. 1974) .... 10

Ault v. Holmes, 369 F.Supp. 288 (W.D. Ky. 1973) .. 10

Batchelder v. Kenton, —— F.Supp. ——, 3 Prison

Law Rptr. 98 (C.D. Cal. 1974) ............000. 10

Beatham v. Manson, 369 F.Supp. 783 (D. Conn. 1973) 9

Benfield v. Bounds, 363 F.Supp. 160 (E.D. N.C.

SD bdcakavknsesdenss adaadenavesusesenenas} 9,13

Bundy v. Cannon, 328 F.Supp. 165 (D. Md. 197i) .... 9

Capitan v. Cupp, 356 F.Supp. 302 (D. Ore. 1972) .... 11

Clonce v. Richardson, 379 F.Supp. 338 (W.D. Mo.

DED énnd bods inane ends nsi5dbedes san ueasenee 10

Croom v. Manson, 367 F.Supp. 586 (D. Conn. 1973) ..10, 14

Fajeriak v. McGinnis, 493 F. 2d 468 (9th Cir. 1974) .. 10

Gomes vy. Travisono, 490 F. 2d 1209 (ist Cir. 1973),

vacated and remanded, —— U.S. ——, 42 US.

as ee OE Oe SUED onsc ccdckecessssensas 10, 14

Gray v. Creamer, 465 F. 2d 179 (3rd Cir. 1972) .... 9

Hillen v. Director, 455 F. 2d 516 (9th Cir. 1972), cert.

denied 409 U.S. 989 (1972) .........ccccccceees 10

Hoitt v. Vitek, 361 F.Supp. 1238 (D.N.H. 1973) ...... 10, 14

Kessler v. Cupp, 372 F.Supp. 76 (D. Ore. 1973) .... 10

Newkirk vy. Butler, 499 F. 2d 1214 (2d Cir. 1974),

cert. granted sub nom. Preiser v. Newkirk, 43

U.S.L.W. 3223 (No. 74-107, October 21, 1974)

1, 2, 8, 9,11, 15

Park vy. Thompson, 356 F.Supp. 783 (D. Ha. 1973). .10, 11

Schumate v. People of the State of New York, 373

F.Supp. 1166 (S.D.N.Y. 1974) ................ 9,13

TABLE OF CONTENTS iii

PAGE

Stone v. Egeler, 377 F.Supp. 115 (W.D. Mich. 1973) 9

United States ex rel. Gallagher v. Daggett, 326 F.Supp.

ee GEA GER, BORD cc ccecccccccccscveseenes 10

Walker v. Hughes, 375 F.Supp. 708 (E.D. Mich.

EE. had nee nscdeecdesadveshdeceinesusteense 10, 14

White v. Gilman, 360 F. Supp. 64 (S.D. Iowa 1974) . .9, 10, 14

Wolff v. McDonnell, —— U.S. ——, 42 U.S.L.W. 5190

Ae ere eee prin 14, 15

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

"*

—

No.

-

a

Ernest L. Montanye, Superintendent of Attica Correc-

tional Facility and Harotp Smirx, Deputy Superin-

tendent of Attica Correctional Facility,

Petitioners,

against

Ropyey R. Haymes,

- Respondent.

-

7

MOTION FOR EXPEDITED CONSIDERATION

OF PETITION

To: Tae Honoraste Carer Justice or tHe Unrrep States

AND THE ASSOCIATE JUSTICES OF THE SuPpREME CoURT

or THE Unrrep States

Petitioners respectfully move, on the grounds set forth

below, for expedited consideration of the petition for a

writ of certiorari herein, and if certiorari is granted, for

expedited argument so that this case may be heard to-

gether with Preiser v. Newkirk, cert. granted, 43 U.S.L.W.

3223 (No. 74-107, October 21, 1974). The instant petition

presents the question of whether a prison inmate who is

transferred within a state from one maximum security in-

stitution to another maximum security institution, without

the imposition of any disciplinary punishment, is entitled

2

under the Due Process Clause of the Fourteenth Amend-

ment to notice of the reasons for the transfer and an

opportunity to be heard.

Preiser v. Newkirk involves a similar question concern-

ing the intrastate transfer of an inmate from a medium

security institution to a maximum security institution.

Heard together these two cases will present to this Court

the two common types of intrastate transfers which have

been the basis for conflicting decisions in the federal courts

on the issue of the process due to the inmate being trans-

ferred (post at 8-10). Insofar as the federal courts have

differentiated between transfers at the same custody level

and those which alter custody classification, these two cases

will provide the Court with an opportunity to rule on these

two situations.

Wuenrerore, petitioners respectfully request that this

Court expedite consideration of the within petition for a

writ of certiorari, and if the petition be granted, expedite

argument so that the case may be heard together with

Preiser v. Newkirk.

Dated: New York, New York

October 31, 1974.

Louis J. Lerxowrrz

Attorney General of the

State of New York

Attorney for Petitioners

Samvuew A. Hirsnowrrz

First Assistant Attorney General

Hie. Horrman

Assistant Attorney General

Marcery Evans Rerrver

Deputy Assistant Attorney General

of Counsel

In THE

Supreme Court of the United States

OCTOBER TERM, 1973

>=

vv

No.

»™

~ 4

irnest L. Montanye, Superintendent of Attica Correc-

tional Facility and Harotp Smits, Deputy Superin-

tendent of Attica Correctional Facility,

Petitioners,

against

Ropyey R. Haymes,

Respondent.

at.

4

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioners, Ernest Montanye, former Superintendent of

Attica Correctional Facility and Harold Smith, former

Deputy Superintendent of Attica Correctional Facility,

pray for a writ of certiorari to review a decision of the

United States Court of Appeals for the Second Circuit

in the case of United States of America ex rel. Rodney R.

Haymes v. Montanye, which was decided on October 4, 1974.

The decision reversed an order of the United States Dis-

trict Court for the Western District of New York, dated

June 4, 1973, dismissing the complaint in a civil rights

action brought pursuant to 42 U.S.C. § 1983, 28 U.S.C.

§ 1343.°

4

Opinions Below

The decision of the Court of Appeals is not yet reported

and is reproduced herein as Appendix ‘‘A’’. The decision

of the District Court is not yet reported and is reproduced

herein as Appendix ‘‘B’’.

J . li ti

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. §1254(1). The judgment of the Court of Appeals

was entered on October 4, 1974.

Question Presented

Whether a prison inmate who is transferred within a

state from one maximum security institution to another

maximum security institution, without the imposition of dis-

civlinary punishment, is entitled under the Due Process

Clause of the Fourteenth Amendment to notice of the

reasons for the transfer and an opportunity to be heard?

Statement of the Case

A. Facts

On June 7, 1972 respondent Rodney R. Haymes, a New

York State inmate, was confined at the Attica Correctional

Facility, Attica, New York. On the morning of June 7

Haymes was discharged from his job as an inmate law

clerk in the Attica law library. During the afternoon of

the same day, prison authorities took from Haymes a docu-

ment which he was circulating among the inmates in a

recreation yard at Attica.

In his complaint, Haymes himself denominated the docu-

ment as a “legal petition” for the ‘‘ redress of grievances.’’

The writing, prepared by Haymes at the request of other

5

inmates, is addressed to Judge Curtin of the United States

District Court for Western District of New York and is

signed by 82 inmates, not including Haymes. The writing

did net make a demand for relief but complained that the

removal of Haymes and another inmate from their jobs

as law clerks had deprived the signatories of legal as-

sistance and access to the courts. It also complained of

the allegedly obstructionist attitude of the correction of-

ficers in charge of the law library.

The confiscation of the document was based on paragraph

21 of the Inmates Rule Book, which states:

“21. Inmates are prohibited except upon approval of

the Warden, to assist other inmates in the preparation

of legal papers.’’

Haymes had not requested permission to circulate the docu-

ment nor had any inmates requested that he be permitted

to assist them. Although the document was confiscated by

the prison authorities, Haymes was not disciplined in con-

nection with the incident.

On June 9, 1972 Haymes was transferred from Attica

Correctional Facility to Clinton Correctional Facility. Both

of these facilities are maximum security institutions within

the State of New York. Haymes was not subjected to any

disciplinary action or punitive confinement upon his arrival

at Clinton.

B. Prior Proceedings

Haymes commenced this action in the United States Dis-

trict Court for the Western District of New York. He

alleged that his transfer was in retaliation for his diso-

bedience to the legal assistance rule and violated his right

to due process since he was not given a hearing. Haymes

also claimed that the petition was special correspondence,

protected by the Department’s own rules, which could not

be confiscated.* He did not seek equitable relief but re-

quested $1,500 in compensatory damages and $1,500 in puni-

tive damages.

Affidavits from petitioner Smith and the correction

officer in charge of the law library were submitted to ex-

plain Haymes’ discharge and the confiscation of the docu-

ment. Petitioner Smith relied on the legal assistance rule

in the prison rule book (ante at 5) as well as a notice

posted in the cell blocks which stated, inter alia: ‘‘Under

no circumstances are inmates to set themselves up as

‘legal counselors’ and receive pay for their services.’’

Smith also stated that Haymes had been cautioned on sev-

eral occasions about rendering legal assistance to other

inmates without their having requested assistance.

On June 4, 1973 the District Court dismissed the com-

plaint. Since there was no allegation of harsher or sub-

stantially different conditions at Haymes’ new place of

confinement, the Court held that Haymes’ summary trans-

fer from one maximum security facility to another did

not violate his rights (A. 15a-l6a).** The Court upheld

the confiscation of the petition as enforcement of a reason-

able prison rule regulating inmate legal assistance (A. l4a-

l5a). As the Court aptly noted, the confiscation in no

way infringed Haymes’ right to communicate with the

court or counsel (A. 15a).

Haymes appealed the order dismissing his complaint to

the Court of Appeals for the Second Circuit. On October 4,

1974 the Court of Appeals reversed the order of dismissal.

The Court rejected the lower court’s holding that a trans-

fer between two maximum security institutions with similar

programs was insufficient to warrant a hearing, irrespective

* Department of Correctional Services’ Administrative Bulletin

#20 states that letters to public officials will not be read or

censored.

** All numbers in parentheses preced y the letter “A” refer

to the Appendices herein.

7

of the motive for the transfer. The Court held that

Haymes must be given an opportunity in court to prove

that the transfer was punitive and that he suffered ad-

verse consequences as a result of the transfer (5a-10a).

The Court stated that a transfer intended as punishment

requires a hearing to ascertain the facts upon which the

intended punishment is predicated, to assess the effect of

the transfer on the inmate’s future incarceration, and to

give the inmate “a satisfactory opportunity to establish

that he is not deserving of such handling” (A. 7a).* The

absence of such a hearing, however, would not establish a

violation of an inmate’s constitutional rights unless he

could also prove that the transfer had sufficiently adverse

consequences so that the move could be characterized as

punitive (A. 9a).

The Court stated that the maximum security classifica-

tion of the two institutions was not dispositive and that the

“hardship involved in the mere fact of dislocation may be

sufficient to render Haymes’ summary transfer—if a trial

establishes that it was punitive—a denial of due process”’

(A. 10a). The Court then enumerated several possible

consequences which might result from a transfer, includ-

ing distance from family and counsel; removal from his

friends; the possibility of property loss during the move;

interruption of programs; and possible adverse inferences

which might be drawn by the Parole Board from the trans-

fer notation on the inmate’s record (A. 10a-lla).

* Although the Court did not state that notice of the reasons

for the transfer was required, such a requirement may be inferred

from the opinion. Since the Court held, in effect, that Haymes

was entitled to the same due process before a punitive transfer

as would be required for punishment within the facility, notice of

the reasons for the transfer would be mandated. In discussing

non-punitive transfers, the Court said “the decision whether to

transfer may not be advanced in any way by providing notice and

a hearing to the transferee” (A. 6a).

8

Having decided that Haymes was entitled to an oppor-

tunity to prove that the transfer was punitive and its con-

sequences adverse, the Court of Appeals did not reach the

issue of whether the confiscated petition was special cor-

respondence protected by Administrative Bulletin # 20.

The Court noted however that the characterization of the

document as a letter and the fact that it demanded no relief

would not automatically withdraw its circulation from the

category of assistance prohibited by the prison’s legal as-

sistance rule (A. lla-12a).

Reasons for Granting the Petition for Certiorari

This Court should decide whether an inmate transferred

within a state from one maximum security institution to

another maximum security institution, without the im-

position of disciplinary punishment, is entitled to notice

and a hearing under the Due Process Clause.

On October 2, 1974 this Court granted the petition for

certiorari in Preiser v. Newkirk, 43 U.S.L.W. 3223. The

question presented in Preiser v. Newkirk [hereinafter New-

kirk) is similar to that raised in the instant case except

that Newkirk involves a transfer to higher security insti-

tutions while the case at bar concerns a transfer between

two institutions of the same security classification.

The question of whether prisoners who are transferred

between penal institutions are entitled to some form of

due process procedures is one which has divided the lower

federal courts in this country. Some courts have held that

such transfers, whether interstate or intrastate, require

no due process while others have held that such transfer

must be accompanied by due process guarantees. The lat-

ter decisions have varied as to the procedural elements

necessary to meet the due process requirement. Some of

the courts have distinguished between transfers which en-

tail a change in security or custody classification, like

9

Newkirk, as opposed to those which involve no change in

security level, like the case at bar. By granting the peti-

tion for certiorari in Newkirk, this Court has recognized

the need for resolving this troubling area of the law.

Those decisions involving the intrastate transfer of

prisoners have produced conflicting results. In Schumate

v. People of the State of New York, 373 F. Supp. 1166

(S.D.N.Y. 1974) and Beatham v. Manson, 369 F. Supp. 783

(D. Conn. 1973), two courts in the Second Circuit held that

transfers between state institutions did not require due

process procedures unless there was an adverse change

in custody level. The plaintiff in Schumate was moved

from one maximum security facility to another, like the re-

spondent in the instant case. The plaintiff in Beatham

was transferred from a higher to lesser security institution.

In Benfield v. Bounds, 363 F. Supp. 160 (E.D.N.C. 1973),

the Court held that a transfer between state penal institu-

tions was entirely a matter of administrative discretion.

The Benfield plaintiff was transferred from one medium

custody facility to another. In Bundy v. Cannon, 328 F.

Supp. 165 (D. Md. 1971), the Court held that transfers

between institutions of different custody levels required no

hearings, although placement in segregation at the receiv-

ing institution created the need for due process procedures.

In Gray v. Creamer, 465 F. 2d 179 (3rd Cir. 1972), the

Court found no merit to a complaint alleging a summary

transfer since a state prisoner has no constitutional right

to remain in any particular prison,

Other courts considering intrastate transfers have man-

dated some due process when the character of the institu-

tion has changed. Newkirk v. Butler, 499 F.2d 1214 (2d

Cir. 1974), cert. granted sub nom. Preiser v. Newkirk, 43

U.S.L.W. 3223 (No. 74-107, October 21, 1974) [medium to

maximum security facility] ; Stone v. Egeler, 377 F. Supp.

115 (W.D. Mich. 1973) [change of custody level plus dis-

tance of new institution]; White v. Gilman, 360 F. Supp.

10

64 (S.D. Iowa 1973) [reformatory to long term adult

prison]. See Clonce v. Richardson, 379 F. Supp. 338 (W.D.

Mo. 1974) [segregated confinement to behavior modifica-

tion program]. In Aikens v. Lash, 371 F. Supp. 482 (N.D.

Ind. 1974), the Court held that state inmates who were

transferred from a reformatory to a penitentiary and

routinely placed in punitive segregation at the peniten-

tiaries were entitled to due process hearings.*

Those eases involving interstate transfers of state and

federal prisoners have been equally inconsistent. Some

courts have he!d that inmates who are transferred between

states have no right to due process procedures, Fajeriak v.

McGinnis, 493 F. 2d 468 (9th Cir. 1974) ; Hillen v. Director,

455 F. 2d 516 (9th Cir. 1972), cert. denied 409 U.S. 989

(1972), even if the transfer is to an institution of a stricter

security classification. Batchelder v. Kenton, F. Supp.

, 3 Prison L. Rptr. 93 (C. D. Cal. 1974).

Some courts considering interstate transfers have re-

quired full due process procedures including notice, an

opportunity to be heard and to confront adverse witnesses,

representation by a law advocate, a record of the proceed-

ings, and review. Kessler v. Cupp, 372 F. Supp. 76 (D.

Ore. 1973); Ault v. Holmes, 369 F. Supp. 288 (W.D. Ky.

1973); Howtt v. Vitek, 361 F. Supp. 1238 (D.N.H. 1973).

Other courts have mandated less extensive due process

procedures. E.g. Gomes v. Travisono, 490 F. 2d 1209 (1st

Cir. 1973), vacated and remanded, —— U.S. ——, 42

U.S.L.W. 3709 (July 8, 1974); Croom vy. Manson, 367 F.

Supp. 586 (D. Conn. 1973) ; Park v. Thompson, 356 F. Supp.

* Those cases concerning federal prisoners have been no more

consistent. In United States ex rel. Gallagher v. Daggett, 326 F.

Supp. 387 (D. Minn. 1971), an inmate challenged his transfer to

a higher seeurity prison. The Court held that the transfer was

not subject to judicial review. In Walker v. Hughes, 375 F. Supp.

708 E.D. Mich. 1974), the Court held that due process was re-

quired before transferring an inmate from a medium, young

uffender institution to a maximum, adult facility.

1l

783 (D. Ha. 1973); Capitan v. Cupp, 356 F. Supp. 302

(D. Ore. 1972).

It is apparent from these conflicting decisions that this

Court should resolve the transfer issue at the earliest

possible date for the benefit of prison inmates as well as

prison administrators, who rely on transfers as one of the

primary management tools for the protection and rehabili-

tation of inmates. In addition this Court should resolve

the legal issue at the heart of the transfer cases, that is,

whether the Due Process Clause applies to all losses of

privilege and all deprivations that are suffered by an

inmate during the course of his confinement.

It is undisputed that Haymes suffered no disciplinary

punishment, special confinement, or loss of good time as

a result of his violation of the Attica legal assistance rule,

either at Attica or Clinton. Nor was he subjected to any

disciplinary action as a result of his transfer, such as

punitive segregation at the receiving institution. The

court below based its ruling on the need for a hearing

when a transfer is punitive and when the consequences of

the transfer are sufficiently adverse to be characterized as

punitive. These suggested guidelines are vague and un-

workable criteria to determine when due process is owed

to an inmate being transferred. In addition, they are in-

consistent with the Court of Appeals’ prior decision in

Newkirk.

In Newkirk the Court of Appeals specifically rejected

classification by label (e.g. ‘‘administrative’’ or ‘‘dis-

ciplinary’’) as the criterion for determining what process

is due the transferred inmate. Rather, the Court there held

that the determinative factor in determining due process

is the loss suffered as a result of the transfer. The loss

must be a ‘‘very real” and ‘‘substantial’’ loss to invoke a

notice and hearing. Thus, the State may not defeat an

inmate’s right to due process by labeling his transfer non-

punitive.

12

Now, by its decision in the instant case, the Court has ap-

parently held that the inmate himself may classify by label,

that is, an inmate who merely alleges that a summary

transfer was punitive must now be given an opportunity

in court to prove that allegation and the adverse con-

sequences of the transfer. Conceivably such an allegation

will be made by any inmate who finds a transfer undesirable

and seeks readmission to the transferring institution.

Given the exigencies of prison life, an inmate is likely to

find some incident or reprimand in the weeks immediately

preceding the transfer, for which he may not even have been

disciplined, and claim that the transfer was intended to

punish him for that incident, minor as it may have been.

A further difficulty with allowing such classification by the

inmate is illustrated by the situation wherein a transfer is

made in consequence of a review of an inmate’s entire

correctional record with a resulting decision that a program

transfer is in order for rehabilitative purposes. The review

may be triggered by a rule violation for which the inmate

has already been disciplined. If the program transfer oc-

curs on the heels of the rule violation, an inmate may now

characterize the transfer as punitive and must be given his

day in court. The correctional authorities must then appear

to justify their decision to transfer as one based on the

rehabilitative factors which are often utilized to transfer

inmates.

Moreover, the Court of Appeals has apparently

abandoned the Newkirk holding that due process is invoked

when an inmate suffers a substantial loss as a result of the

transfer. It was not a mere transfer which entitled

Newkirk to notice and a hearing, but a change of custody

transfer which involved deprivations of favorable living

conditions and employment and training opportunities.

However, in the instant case the Court stated that the

“hardship involved in the mere fact of dislocation may be

sufficient to render Haymes’ summary transfer—if a trial

13

establishes that it was punitive—a denial of due process”’

(A. 10a). Although Haymes had never claimed that he

was subjected to adverse consequences as a result of the

transfer, the Court proceeded to suggest what these factors

might be. They included distance from family, possible

loss of property, interruption of programs, loss of friends,

administrative segregation at the receiving facility, diffi-

culty in contacting counsel, and the necessity to make an

adjustment to a new environment.

The Court of Appeals for the Second Circuit is the only

court which has held that a transfer between two intrastate

correctional facilities of the same security classification

and similar character, without the imposition of disci-

plinary punishment, may be a sufficiently substantial

deprivation to invoke due process. Petitioners submit

that such a transfer is not a very real or substantial loss

in the constitutional sense of those terms and does not eall

for the due process procedures mandated by the Court of

Appeals. The consequences of such a transfer are those

suffered by every inmate who is transferred; they are in

no way peculiar to an inmate who claims that his transfer

was punitive. All of the courts which have considered

transfers between institutions of the same custody level

have specifically held that a summary transfer in that

situation is not a violation of the inmate’s constitutional

right. E.g. Schumate v. People of the State of New York,

supra; Benfield v. Bounds, supra.

The transfer cases in the federal courts which have man-

dated due process hearings (ante at 9-10) fall into two

categories—those which require due process because the

transfer is to an institution of a stricter security level,

and those which require due process because the transfer

is interstate. The rationale on which the courts have re-

lied to mandate due process in these two categories has no

application to the situation of an intrastate transfer be-

tween two facilities of the same security classification.

14

When an inmate is transferred to an institution of a

stricter security classification he may lose certain privi-

leges which he enjoyed at the prior institution. E.g.

Newkirk vy. Butler, supra; Walker v. Hughes, supra; White

v. Gilman, supra. Preiser v. Newkirk will explore whether

this loss is sufficiently grievous to invoke the due process

clause. When an inmate is transferred to another insti-

tution of the same character and security classification,

this factor is obviously lacking. The program opportuni-

ties and freedom of movement are essentially the same at

the receiving institution as they were at the sending insti-

tution, and the diminution of privileges even less severe

than the Newkirk situation.

These cases involving out of state transfers have stressed

transfer consequences far more serious than those which oc-

cur in an intrastate transfer. These include the failure to

supply records with resulting programs and treatment in-

consistent with prior rehabilitation; serious problems of

orientation in a totally new (that is, different state or

federal) penal environment; lengthy administrative or

quarantine segregation; failure to forward medical and

psychiatric records with consequential denial of treatment;

and the likelihood of a transfer to an institution a great

distance from the sending facility. E.g. Gomes v. Travisono,

supra; Croom vy. Manson, supra; Hoitt v. Vitek, supra.

When a transfer is made between two institutions in the

same state these factors are absent and the rationale

underlying the interstate transfer cases cannot be applied

to the instant situation.

While not denying that an inmate may suffer some dis-

location as a result of an intrastate transfer between two

institutions of the same security classification, petitioners

submit that the consequences of such a transfer are in-

sufficient to be deemed a substantial deprivation in a legal

sense or to invoke the Due Process Clause. In Wolff v.

McDonnell, —— U.S. ——, 42 U.S.L.W. 5190 (June 24,

=

--

~s

15

1974), this Court drew a distinction between the due

process owed to a parolee facing revocation and an in-

mate facing disciplinary punishment within a prison, af-

fording the latter less protection under the Due Process

Clause. This Court also noted that the process due when

an inmate faced good-time forfeiture or solitary confine-

ment would not apply to situations in which lesser penalties

were to be imposed. 42 U.S.L.W. at 5200, n. 19.

An inmate who is summarily transferred without the

imposition of disciplinary punishment may suffer fewer

deprivations in a legal sense than a prisoner summarily

transferred for disciplinary reasons and placed in solitary

confinement at the receiving institution. Likewise, an in-

mate transferred within a state to an institution of the

same security classification may not suffer the same

deprivations that are suffered by an inmate who is trans-

ferred out of state or to a stricter security facility. The

instant case provides this Court with another opportunity

to clarify the due process rights of inmates in these vary-

ing situations, particularly when the transfer is between

institutions of the same custody level.

In light of the widespread and serious division of the

lower federal courts on the rights of transferred prisoners ;

in light of a Court of Appeals’ decision which fails to

establish workable guidelines for its ruling; in light of the

Court of Appeals’ apparent conflict with its earlier hold-

ings in Newkirk, and in light of this Court’s grant of

certiorari in Preiser v. Newkirk, petitioners believe that

their application for certiorari should be granted in this

case.

16

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Dated: New York, New York

October 31, 1974.

Respectfully submitted,

Louis J. Lerxowrrz

Attorney General of the

State of New York

Attorney for Petitioners

Samvuet A. HirsHowrrz

First Assistant Attorney General

Hite, HorrMan

Assistant Attorney General

. Marocery Evans Rerrcer

Deputy Assistant Attorney General

of Counsel

la

Appendix A.

Decision of the United States Court of Appeals for the

Second Circuit, dated October 4, 1974.

UNITED STATES COURT OF APPEALS

For tHe Seconp Circuit

No. 20—September Term, 1974

(Argued September 13, 1974 Decided October 4, 1974)

Docket No. 74-1208

”™

. 4

Unrrep States or America ex rel. Ropyey R. Haymes,

Petitioner-A ppellant,

against

Ernest L. Montanye, Superintendent, Attica Correctional

PUD oscceces Smith, Deputy Superintendent, Attica

Correctional Facility,

Respondents-A ppellees.

i.

7

Before: Kaurmanx, Chief Judge, Smitn and Trsers,

Circuit Judges.

Kavurman, Chief Judge:

It is clear beyond cavil that American prisons have failed

dismally to fulfill the ambition of contemporary penologists

that prisoners should be treated and rehabilitated. Al-

though it is impossible to deny that many are sentenced to

prison as punishment, however, we cannot condone the idea

2a

Appendix A.

that the mere fact of incarceration permits a prisoner to be

punished at the whim of those charged with his confine-

ment. Rodney Haymes, formerly an inmate at New York's

Attica Correctional Facility, initiated this § 1983 action

seeking damages for the confiscation of a “legal petition”

which he circulated while in custody there, and for his al-

leged summary punishment two days later by transfer

without a hearing to the Clinton Correctional Facility. We

reverse the summary judgment dismissing his complaint.

A brief recitation of the facts will aid in framing the

issues we are called upon to decide. Haymes was dis-

charged as inmate law clerk in Attica’s law library on the

morning of June 7, 1972. During the afternoon of that

same day, prison authorities seized from Haymes a docu-

ment which he was circulating among the inmates in the

“A” block recreational yard. The writing, prepared by

Haymes at the request of other prisoners and signed by 82

inmates, was addressed to Judge Curtin of the United

States District Court for the Western District of New

York. Although it requested no relief, the petition stated

that the signatories were being deprived of legal assistance

because of the removal of Haymes and John Washington,

another inmate law clerk, from the library. The document

charged that law library officer Edward Brady went “out of

his way to circumvent inmates legal assistance.” It also

alleged this to be the reason for the removai uf Haymes and

Washington from their positions in the library.

Although no explanation for the confiscation was given

at the time, Deputy Superintendent Harold Smith stated in

an affidavit submitted in response to Haymes’ complaint

that the papers were seized because Haymes had not asked

permission to circulate them, and none of the signers had

requested legal assistance, despite the provision of Rule 21

3a

Appendiz A.

of the Inmate’s Rule Book:

21. Inmates are prohibited, except upon approval of

the Warden, to assist other inmates in the prepa-

ration of legal papers.

While there is some question whether Rule 21 was in fact

widely circulated,’ Smith stated that Haymes had been cau-

tioned on several occasions not to assist other inmates who

had not requested and received approval. A notice from

former Superintendent Montanye, posted on the cell block

bulletin boards April 25, 1972, also stated:

In all instances where inmates desire assistance in the

use of the law Library, they are to present their prob-

lems to Correction Officer Brady, who will assist

them to the extent necessary or will assign inmates on

‘the Law Library staff to particular cases.

Under no circumstances are inmates to set them-

selves up as “legal counselors” and receive pay for

their services.

Haymes protested the confiscation, asserting that the

petition was protected as a special letter under Adminis-

trative Bulletin #20, which provides:

9. Special correspondence to public officials: You may

write to the President of the United States, Mem-

bers of Congress, . . . and to any Judge. . . .

The letter will not be read or censored.’

* Haymes stated in his affidavit submitted to the district court

that he had never been given a rule book, nor had one been

published since 1969.

?N.Y. Dep't of Correction, Administrative Bull. No. 20, Jan.

31, 1972. The Bulletir. was published shortly after this court

decided, in Sostre v. McGinnis, 442 F.2d 178, 200 (2d Cir. 1971),

cert. denied, 404 U.S. 1049 and 405 U.S. 978 (1972), that censor-

ship of inmate letters to courts, lawyers and public officials vio-

lated the first amendm-ut rights of prisoners.

. Appendiz A.

the events leading to the seizure was

later, on July 9, 1972, Haymes was

t a hearing from Attica to the Clinton

ity. Although both institutions are max-

acilities, Clinton is several hundred miles

from Haymes’ home in Buffalo. After his

aymes wrote twice to Superintendent Montanye

g the confiscation of the papers and requesting

their return. He received no response.

The real impac

felt when, two

transferred wi

Haymes then began this § 1983 action,’ alleging that his

transfer without hearing to Clinton, in retaliation for his

disobedience of Rule 21, deprived him of due process. His

complaint also alleged that the petition being circulated

was not ‘‘legal assistance’’ but ‘‘special correspondence’”’

protected by Administrative Bulletin #20, and that its

confiscation was therefore improper. He sought $1500 in

compensatory damages for the time he was deprived of

the document, and $1500 punitive damages ‘‘for the various

acts of reprisals taken against’? him. Haymes thereafter

retained counsel. After considering affidavits and ex-

hibits submitted to him, the judge, on Montanye’s motion,

‘*dismissed’’ Haymes’s ‘‘application for relief under the

Civil Rights Aect.’’ Sinee there is no indication that

Judge Curtin found Haymes’s claims to be frivolous, see

28 U.S.C. $1915 (d), and because he considered matters

outside the pleadings, see F.R.Civ.P. 12 (b), his disposi-

tion perforce was summary judgment. F.R.Civ.P. 56.

Judge Curtin held that the seizure of the document, be-

cause it represented unauthorized legal assistance, was

proper under Rule 21. He also found no violation of due

process in Haymes’s transfer. In effect, therefore, Judge

*42 U.S.C. § 1983 (1970). Although the case has been charac.

terized throughout as « habeas corpus proceeding, the district

court properly treated il from the outset as an action under the

Civil Rights statute.

5a

Appendiz A.

Curtin decided that the alleged punitive nature of the

transfer was not material. The district judge reasoned

that, because no claim was made that ‘‘the facilities at

Green Haven [sic] are harsher or substantially different

from those afforded to petitioner at Attica,’’ the defend-

ants were entitled to judgment as a matter of law.

It is black letter law that the issue on an appeal from

a summary judgment is whether the pleadings, affidav.‘:,

and other papers before the district court show a ‘‘genu-

ine issue as to [some] material fact,’’ requiring a trial,

F.R.Civ.P. 56 (c). Haymes claims that the circumstances

of his transfer raise two such issues: whether he was

moved to Clinton Correctional Facility as punishment for

his disobedience of prison rules and policies, and whether

the effects of transfer were sufficiently harsh to make

denial of a hearing a violation of due process. If the

district court had permitted him to establish a punitive

animus behind his transfer, the argument proceeds, he

would not have been required to establish that Clinton’s

facilities were ‘‘substantially different’? from those at

Attica. Rather, Haymes argues, implicit in the very fact

of his dislocation are deprivations at least as severe as

those which may be imposed as punishment pursuant to

the New York Correctional Rules and Regulations. Since

some form of hearing is required before a misbehaving

inmate can be made to suffer the specified sanctions, sum-

mary transfer for similar misbehavior may amount to a

denial of due process. We see merit in this contention.

I,

We find it difficult, in the absence of a trial record, to

iook upon the circumstances of the transfer as a mere

coincidence. The papers reveal that less than forty-eight

hours after Haymes was ordered to cease collecting signa-

tures without permission in the recreation yard, he was

6a

Appendix A.

shipped to the Clinton Correctional Facility hundreds of

miles away. But in granting summary judgment, the

district court deprived Haymes of an opportunity to prove

a causal connection between the two events, finding in effect

that the harm he suffered did not warrant affording a hear-

ing irrespective of the motive for the transfer. We do not

disagree with the assertion that not every inmate who

must endure the burden alleged by Haymes deserves a full

panoply of procedural armor. Removal of inmates to

other facilities may be justified by any of a number of

concerns quite proper to the administration of prison sys-

tems. One scarcely needs to be reminded of the sad events

at Attica prison three years ago to understand the explo-

sive potential flowing from the lamentable conditions which

confront many prisoners. Although such circumstances

neither excuse the need for reform nor justify sacrificing

the inmate on the altar of security, they may on occasion

render it necessary to take summary action to avert im-

minent riot. Overcrowding and the not unrelated hazards

to health may also call for a prompt response by prison

authorities. We certainly have no intention of unneces-

sarily placing prison officials in a straitjacket. But, gen-

erally, in such cases the reasons for transfer are extrinsic

to the inmate’s behavior, and the decision whether to

transfer may not be advanced in any way by providing

notice and a hearing to the transferee, Moreover, although

the dislocation suffered by the transferred prisoner may

be burdensome, the need to avoid more general harm may

outweigh his individual claim.*

* After all these years of reviewing prison problems, we are not

too myopic to notice the distinct possibility of arbitrary, mis-

guided, or disingenuous invocation of administrative justifications

for transfer. Although we must to some extent rely upon the

good faith of prison vfficials, the individual inmate is not left

unprotected against such abuses. See Newkirk v. Butler, Slip op.

3893, 3899 (2d Cir. June 3, 1974).

7a

Appendiz A.

Transfer intended as punishment, however, presents

a situation wholly different from the administrative re-

moval of an inmate to another facility. When harsh treat-

ment is meted out to reprimand, deter, or reform an indi-

vidual, elementary fairness demands that the one punished

be given a vatisfactory opportunity to establish that he is

not deserving of such handling. While some discretion

may be appropriate in an administrative determination of

the need to avoid violence and unrest, the specific facts

upon which a decision to punish are predicated can most

suitably be ascertained at an impartial hearing to review

the evidence of the alleged misbehavior,’ and to assess the

effect which transfer will have on the inmate’s future in-

carceration. Indeed, in situations where punitive sanctions

other than transfer are imposed, the New York correctional

system has established procedures which recognize both

the demands of elementary fairness and the suitability of

an impartial hearing. It is to these regulations that we

now turn.

Il.

Four years ago the New York Commissioner of Correc-

tions published, pursuant to authority given him by statute,

see N.Y. Correction Law $$ 112, 137 (McKinney Supp.

1974), Procedures for Implementing Standards of Inmate

Behavior. 7 N.Y.C.R.R. §§ 250 et seg. These rules, pres-

ently in force, are intended to be applied in instances where

an inmate violates a rule or regulation governing his be-

havior, or fails to comply with an instruction given him

5 See Wolff v. McDonnell, 42 U.S.L.W. 5190, 5196 (June 26,

1974) (holding that “[s]ince prisoners in Nebraska can loose

good-time credits only ii they are guilty of serious misconduct.

the determination of whether such behavior has occurred becomes

critical, and the minimum requirements of procedural due process

appropriate for the circumstances must be observed.’’)

8a

Appendiz A.

by an employee of the department of corrections. Section

250.1. The code provides that minor infractions may be

dealt with merely by counsel, warning, or reprimand.

Section 251.5. Other standards apply to more persistent

refractory behavior, and to misbehavior involving danger

to life, health, security, or property. Reports of such

conduct are required to be made in writing to the super-

intendent, $§ 251.4, 251.5(b), and are reviewed at least

weekly by the prison adjustment committee. Section

252.3(a)-(c). The committee also looks at the information

in the inmate’s file; it may direct a further investigation,

and must “obtain from the inmate as full and complete an

explanation of his behavior in the situation as possible.”

Section 252.3(¢c)-(e). With the concurrence of at least

two of the three members, the committee may then impose

limited restrictions, the most serious of which is confine-

ment in a special housing unit for a period of one week.

Section 252.5. Where punitive sanctions are to be imposed,

a “superintendent’s proceeding” is provided before an im-

partial employee, at which formal written charges are filed,

and notice and assistance given the inmate, The charge

must be supported by substantial evidence, which is to

include an interview with one or more of those who wit-

nessed the incident. Sections 253.1 to 253.4. Punishment

may then be imposed, includiing loss of privileges, change

of program, confinement up to 60 days, special diet, loss of

good behavior allowance (“good time”), and a requirement

of restitution for intentional damage to state property.

Section 253.5. Transfer is not specified among the sanc-

tions to which a superintendent’s proceeding may give

rise.°

* The authority to transfer inmates is given by § 23 of the Cor-

rection Law, N.Y. Correction Law § 23 ‘McKinney Supp. 1974),

(footnote continued on following page)

9a

Appendiz A.

We have recounted New York’s prescribed procedure at

some length in order to emphasize the disparity in treat-

ment accorded inmates punished thereunder, and those who

are summarily transferred for rule infractions. Had

Haymes’ action in circulating the petition been consid-

ered merely a minor infraction, it ordinarily would have

received nothing more than a reprimand. Had it threat-

ened danger to prison security, or had Deputy Superintend-

ent Smith’s allegation that Haymes had on other occasions

rendered unauthorized legal assistance proved true, a re-

port would have been filed for adjustment committee re-

view. If Haymes had been thought to deserve one of the

enumerated punitive sanctions, a full superintendent’s pro-

ceeding would have been held. It is, of course, much to

the credit of the New York correctional system that such

thorough, specific, and sensitive procedures have been codi-

fied to govern the enforcement of standards for inmate

behavior. But it would be anomalous indeed, “both from

a due process and an equal protection point of view, if the

prison authorities could accomplish by transfer a proce-

dure-free punishment which they could not accomplish

within their own walls.’’ Gomes v. Travisono, 490 F.2d

1209, 1215 (1st Cir. 1973).

III.

Haymes’ allegation that his transfer was intended as

punishment for his violation of Rule 21 would not merit

(footnote continued from preceding page)

which provides:

1. The commissioner of correction shall have the power to

transfer inmates from one correctional facility to another.

... The transfer shall be in accordance with rules and regu-

lations promulgated by the department for the safe delivery

of such inmates to the designated facility.

No provisions are set out governing the proper occasions for

transfer, ur the procedure for determining whether such an occa-

sion in fact exists.

10a

Appendiz A.

relief, however, absent a showing that the move to the

Clinton Correctional Facility in fact had consequences suffi-

ciently adverse to be properly characterized as punitive.

In granting summary judgment, the district court found

that there was no allegation that the facilities at Clinton

were “harsher or substantially different from those af-

forded to petitioner at Attica,” citing Wells v. McGinnis,

344 F. Supp. 594, 596 (S.D.N.Y. 1972) (administrative

transfer). Whatever may be the standards governing the

need for hearing prior to administrative transfers, how-

ever, see Newkirk v. Butler, supra, note 4, we do not think

it dispositive that both Attica and Clinton are maximum

security facilities with similar programs. Rather, we find

that the hardship involved in the mere fact of dislocation

may be sufficient to render Haymes’ summary transfer—

if a trial establishes that it was punitive—a denial of due

process.

The facts of this case may provide a good illustration of

the real hardship in being shuttled from one institution to

another. After being sent to Clinton, Haymes found him-

self several hundred miles away from his home and family

in Buffalo, New York. Not only was he effectively

separated by the transfer from his only contact with the

world outside the prison, but he also was removed from the

friends he had made among the inmates at Attica and forced

to adjust to a new environment where he may well have

been regarded as a troublemaker. Contacts with counsel

would necessarily have been more difficult. A transferee

suffers other consequences as well: the inmate is frequently

put in administrative segregation upon arrival at the new

facility, 7 N.Y.C.R.R. Part 260; personal belongings are

often lost; he may be deprived of facilities and medications

for psychiatric and medical treatment, see Hoitt v. Vitek,

361 F. Supp. 1238, 1249 (D.N.H. 1973) ; and educational and

rehabilitative programs can be interrupted. Moreover, the

lla

Appendix A.

fact of transfer, and perhaps the reasons alleged therefor,

will be put on the record reviewed by the parole board, and

the prisoner may have difficulty rebutting, long after the

fact, the adverse inference to be drawn therefrom. One can

easily comprehend the bitterness which may be engendered

by the capricious infliction of such unwarranted sanctions.’

Small wonder, then, that the American Correctional <As-

socation has recognized that ‘‘[i]n any penal system em-

bracing several institutions, transfer from one to another is

often an effective disciplinary procedure as well as an

administrative necessity.’’ American Correctional Ass’n,

Manual of Correctional Standards 416 (1972).

IV.

Because of the disposition we reach upon Hayme’s claim

that his transfer without hearing may have denied him

due process if it was punitive in nature, we need not con-

sider whether a genuine issue of material fact is raised by

the allegation that the confiscated petition was special cor-

respondence protected by Administrative Bulletin #20.

We note, however, that the mere fact that the petition re-

quested no relief does not automatically withdraw it from

the category of ‘‘legal assi: ance’’ governed by Rule 21.

If those who signed the letter did not expect the court to

~ act on it of its own accord—a fact which is not at all clear—

they at least thought, as Hayme’s brief admits, that the

* Although Hayme’s complaint did not recite many of the

deprivations we have enumerated, it is important to note that he

was able to retain counsel only shortly before the district court

rendered summary judgment. We think it proper that “the

allegations of [a] pro se complaint [should be held] to less strin-

gent standards than formal pleadings drafted by lawyers... .”

Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). The

charge that he was punished by the fact of transfer at least

entitled Haymes to a hearing to explain why the transfer was

onerous to him.

12a

Appendiz A.

matter would be “referred . . . for investigation to other

agencies, such as the FBI, interested public interest

lawyers, or others... .”’

Nor do we think that the prohibition of unauthorized legal

assistance should be rendered nugatoiy in any situation

where the product of the forbidden collaboration happens

to be a letter written to a public official. The concern under-

lying prison rules on legal assistance is that “strong-willed

inmates might exact hidden and perhapus non-monetary

fees” in return for legal advice, thereby presenting a menace

to prison discipline. See Sostre v. McGinnis, 442 F.2d 178,

202 & n.47 (2d Cir. 1971) (en bane), cert. denied, 404 U.S.

1049 and 405 U.S. 978 (1972); Johnson v. Avery, 393 U.S.

483, 488 (1969). It would be shortsighted indeed to permit

subversion of this obviously rational policy by so trans-

parent a ruse as a mere change of salutation on legal docu-

ments.

Reversed.

SS eee

13a

APPENDIX B.

Opinion of the District Court, dated June 4, 1973.

UNITED STATES DISTRICT COURT

Western District or New York

=

~

Civil 1972-410

—

as

Unrrep States or America ex rel. Ropyey R. Haymes,

Petitioner

—vs—

Ernest L. Montanye, Superintendent, Attica Correctional

Facility, and Agent... ... Situ, Deputy Superin-

tendent Attica Correctional Facility,

Respondents

Curtin, D.J.

This action began with a communication from petitioner

to this court alleging that a document was seized from him

by correctional authorities. Petitioner also alleged that two

days after this document was seized, he was transferred

from Attica Correctional Facility to Clinton Correctional

Facility. Petitioner further alleged tlat two subsequent

letters to Superintendent Montanye iailed to effect the

return of the confiscated document to petitioner.

In an order dated August 3, 1972, this court construed

petitioner’s communication as an application for relief

under the Civil Rights Act (42 U.S.C. $1983; 28 U.S.C.

§ 1343), and ordered the respondents to show cause why

petitioner should not be allowed to proceed further.

l4a

Appendiz B.

Included in respondents’ answering papers to that order

is the confiscated document that is the subject of this

action. This doeument is in the form of a letter to this

court, signed by 82 Attica inmates, charging that, because

of the removal of petitioner as a law clerk in the prison

library at the Attica Facility, they are denied adequate

access to the courts. Also included in respondents’ answer-

ing papers are affidavits from Edward V. Brady, Corree-

tional Officer at the Attica Correctional Facility, and

Harold Smith, Deputy Superintendent at the Attica Cor-

rectional Facility. These affidavits state that not long

after petitioner’s removal from his position as clerk in

the law library at the Attica Correctional Facility, he

was seen circulating a document in the recreation yard of

the Attica Facility. Pursuant to the Attica rules which

forbid inmates to provide legal assistance to other in-

mates without the approval of the Superintendent, the

document was seized from him.

Petitioner submitted a reply to respondents’ affidavits in

which he moved to amend his original application to include

Edward Brady as a respondent. That motion i+ granted

and Mr. Brady is named as a respondent.

Subsequent to petitioner’s reply, Herman Schwartz and

Edward I. Koren of Buffalo, New York, who were re-

tained as counsel by petitioner, have submitted a memo-

randum of law.

The court will consider each claim raised by petitioner

and his counsel separately. Petitioner’s original com-

munication to this court alleges that the document seized

by correctional authorities was a ‘‘legal petition’’ ad-

dressed to this court. He maintains that the seizure

denies him adequate access to the courts. In response to

this allegation, respondents state that the rules of the

Attica Correctional Facility provide that inmates can give

l5a

Appendiz B.

legal assistance to other inmates only if the request for

such assistance is made through the law librarian of the

Attica Facility.

This rule is not unreasonable as long as permission for

inmates to assist each other is freely given. See Johnson

v. Avery, 383 U.S. 483 (1969); Sostre v. McGinnis,

442 F.2d 178, 201 (2d Cir. 1971); United States ez rel.

Stevenson v. Mancusi, 325 F. Supp. 1028 (W.D.N.Y. 1971) ;

In the Matter of the Application of William J. Kruth,

Civil No. 1972-230 (W.D.N.Y., Nov. 14, 1972).

The affidavit of Edward V. Brady, the law librarian at

the Attica Facility, states that none of the 82 signatories

of the seized letter ever asked for legal assistance. Peti-

tioner’s response to the affidavit does not controvert this

fact. The court finds there has been no violation of peti-

tioner’s rights under Johnson v. Avery, supra, and subse-

quent cases.

Counsel for petitioner views the facts in this case some-

what differently, arguing that petitioner was not providing

legal assistance to other inmates but was circulating a

document seeking joint action to protest certain prison

conditions, and that in retaliation for circulating this docu-

ment, it was seized and petitioner was subsequently trans-

ferred. However, the court determines that, under the

circumstances, the authorities had the right to seize the

petition. Christman v. Skinner, 468 F.2d 723, 725 (2d Cir.

1972). The petitioner’s right to communicate with the

court or with counsel was not infringed.

The transfer of the petitioner from Attica to Green

Haven did not violate petitioner's rights. Aiihough a gen-

eral allegation is made that punishment was the motive for

the transfer, there is no allegation that the facilities at

Green Haven are harsher or substantially different from

l6a

Appendiz B.

those afforded to petitioner at Attica. See Wells v. Me-

Ginnis, 344 F.Supp. 594, 596 (S.D.N.Y. 1972). Petition-

er’s transfer was consistent with the discretion given to

prison officials in exercising proper custody of inmates.

Petitioner’s application is dismissed.

Permission to appeal in forma pauperis is denied, with

the qualification that the Clerk is directed to file a notice

of appeal from this decision without the prepayment of the

filing fee.

Further requests for permission to appeal in forma

pauperis should be directed, on motion, to the United

States Court of Appeals for the Second Circuit, Foley

Square, New York City, in accordance with the require-

ments of Rule 24(a) of the Federal Rules of Appellate

Procedure.

So ordered.

/8/

Joun T. Curtin

United States District Judge

Dated: June 4, 1973.